10 Cal. App. 2d 323 | Cal. Ct. App. | 1935
This is an appeal from a judgment on the merits in favor of the proponents of a will and against the contestant. Before the trial of the contest was ended, the contestant moved the court to dismiss without prejudice and he also announced in open court that he had dismissed the contest and had abandoned it. His contention on appeal is that the trial court should have treated the contest as dismissed and therefore the judgment on the merits was erroneous.
A petition was filed in the superior court to probate the will of the deceased, and proper notice of the hearing of said petition and the time and place thereof was given as required by law. Prior to the hearing of said petition the contestant herein filed his written contest objecting to the probate of the will upon several grounds. The answer of the surviving husband, Frank Matthiessen, in addition to denying the allegations of the contest, set forth an additional ground for the admission of the will to probate to the effect that the decedent had entered into a written contract with him to make the will, and asked as affirmative relief that the will be admitted to probate as the last will and testament of deceased, and for costs.
The trial of the contest came on for hearing. The contestant proceeded to introduce evidence in support of the con
The contention of the contestant is that a will contest is, in effect, a civil action wherein the contestant is plaintiff; that a plaintiff has an absolute right to dismiss without prejudice at any stage of the proceedings prior to submission and the word “may” in the first sentence of section 581 of the Code of Civil Procedure is mandatory and does not make the right to dismiss discretionary with the court; that the action taken by contestant’s counsel at the trial amounted to an actual dismissal, not merely a motion to dismiss; that even granting there was no actual dismissal, but merely a motion to dismiss, it was not a matter of discretion and the dismissal should have been entered as a matter of course; and that even conceding that the matter was one for the exercise of legal discretion, such discretion was grossly abused under the circumstances shown by the record.
Section 581 of the Code of Civil Procedure in so far as it is germane to the questions here presented provides as follows: An action may be dismissed, or a judgment of nonsuit entered, in the following cases: 1. By the plaintiff, by written request to the clerk, filed with the papers in the case, at any time before the trial, upon payment of the costs, provided that affirmative relief has not been sought by the cross-complaint or answer of the defendant. Such dismissal must be made by entry in the clerk’s register and is effective for all purposes when so entered. No such dismissal shall be granted unless upon the written consent of the attorney of record of the plaintiff. 4. By the court, when upon the trial and before the final submission of the case, the plaintiff abandons it. Such dismissal must be made by order of the court entered upon the minutes thereof.
It has been said that the word “may” as used in the section must be construed as “must”, leaving no discretion with the court, but this statement was made with reference to subdivision one of the section, which provides that the party may dismiss by written request to the clerk filed with the papers in the case and that when this request is entered by the clerk it is effective for all purposes. Obviously such a dismissal does not require an order of the court. The filing of the written request with the clerk and the entry thereof by him ipso facto constitutes a dismissal, and naturally there is no
With regard to contestant’s claim that the court grossly abused its discretion under the circumstances shown by the record, we make the following observations: The whole policy of the law in California favors speedy administration and settlement of estates and demands that administration shall be accompanied with reasonable dispatch and as soon as may be, and for this reason representatives should not be exposed to unnecessary litigation nor should dilatory procedure be permitted or encouraged. (11A Cal. Jur. 139, sec. 77, and cases cited.) While it has been said that each step in a probate proceeding is separate, largely the import of what is meant is that the proper jurisdictional steps must be taken • as to each and the orders entered in the separate steps of the administration may not be attacked collaterally but only directly. “ ... as to various proceedings it has been said that they are but steps in the administration of the estate. . . . Thus the contest of a will is not a new action or proceeding, but receives all its vitality from and has its origin in the original petition to probate the will and the statutory provisions governing the proceedings.” (11A Cal. Jur. 134, and eases cited.) Certainly a petition to probate a will and a contest thereof before probate are not separate in many
We hold that the trial court was entitled to exercise a legal discretion in the matter of dismissing the contest, and we hold also that under the circumstances set forth in this case the court did not abuse its discretion in denying the motion to dismiss.
After consuming three days of the court’s time in the trial, the contestant was attempting to dismiss because he felt that under his theory of the case he could not prevail. If the motion to dismiss had been granted he might have succeeded in starting a new contest before the will was admitted to probate. Even if the will had been admitted to probate he might have waited until near the end of six months before starting a new contest and the contest might have taken a considerable time thereafter. The trial- court apparently thought that under the circumstances the nuisance value of the contest was too great to grant the motion.
Judgment affirmed.
Wood, J., and McComb, J., pro tom., concurred.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 20, 1936.